rehearing">

On Rehearing.

ROGERS, J.

We have reached the conclusion, on a reconsideration of this case, that the record exhibits reversible error.

The trial judge, we think, ruled too nar•rowly in excluding the evidence offered by defendant tending to show that on April 30, 1929, he had on deposit in the Citizens’ National Bank of Hammond the sum of $2,544.-56, including the proceeds ($1,282.50) of the car of berries designated as N. P. 1800, and in holding that the sole issue in the case was whether the false pretense related to the presence of the money in the bank at the time of, or just prior to the purchase of the car of berries in question, and that it was immaterial and irrelevant as to whether or not defendant later secured money and put it in the bank. The judge’s ruling was based on the fact that the state, by its evidence, was relying solely for defendant’s conviction on an alleged false statement made by him on the night of April 27, 1929, at and before the time he purchased the car of strawberries, that he then and there had on deposit in the bank sufficient money to pay for the berries purchased by him that night. But the indict *498 ment itself on which the defendant is being prosecuted charges that the alleged crime was committed on April 30, 1929, when it is set forth the defendant obtained by the alleged false pretense the ear of strawberries N. P. 1800 from the Louisiana Strawberry Auction, Inc.

The defendant appears to have engaged in extensive business dealings, running into thousands of dollars, with the Louisiana Strawberry Auction, Inc., during the years 1928 and 1929. In the course of these business dealings, defendant purchased on Saturday night, April 27,1929, the ear of strawberries in question, which, however, was not delivered to defendant at that time. As a matter of fact, according to the record, this particular ear of strawberries was in transit consigned to the shipper, the Louisiana Strawberry Auction, Inc., from Independence, La., to Mattoon, 111. The day after defendant’s purchase, namely, Sunday, April 28, 1929, the Louisiana Strawberry Auction,.Inc., issued a diversion order to the American Railway Express Company, directing that company to send the car of strawberries to Gridley, Max-on & Co., at Chicago, 111. The strawberries were delivered, presumably, to Gridley, Max-on & Co. for defendant’s account on Tuesday, April 30, 1929, as set forth in the indictment herein. Hence defendant’s offense, if he was guilty of any offense, was not committed on April 27,-1929, which was the basis of the ruling of the trial judge in excluding the evidence offered by defendant, but on April 30, 1929, as alleged in the indictment, when the Louisiana Strawberry Auction, Inc., actually parted with its property. The well-settled rule of law is that, in order to constitute the offense of obtaining property by false pretenses, the property must have been actually obtained either by the accused himself or by some one in his behalf, the offense being complete when the property is obtained, and not until then. 25 C. J. pp. 604 and 605.

The crime of obtaining property by false pretenses may be defined to be the false representation of a past or existing fact, knowingly and intentionally made, orally, in writing, or by conduct, to deceive, and which does, in fact, deceive, and by means of which one person obtains property from another without compensation. Of. C. J. 25, p. 589. But, since the crime consists not only in making false representations, but also obtaining property thereby, it follows that, although the pretense is false when made, yet, if it becomes true at the time when the prosecutor relies ■thereon and the property is obtained, the crime is not committed. 25 C. J. p. 590.

The purpose of! the defendant in offering the excluded testimony was to show that he had deposited large sums of money in the bank on the 24th, 25th, 26th, and 29th of April, 1929, and that on April 30, 1929, the day on which the ear of strawberries was delivered to Gridley, Maxon & Co., at Chicago, he actually had on deposit in the bank to his credit the sum of $2,544.56; that included in this amount was $1,282.56, which had been received from Gridley, Maxon & Co. in payment of his draft covering this particular car of strawberries; that of the amount of $2,-544.56 on deposit to his credit the Louisiana Strawberry Auction, Inc., on April 30, 1929, withdrew $2,042.40, on a cheek previously given that company by defendant on another transaction; that, although it was not on the check given to defendant auction company by defendant on April 27,1929, that company actually received the proceeds of the berries contained in car N. P. 1800, on. which this prosecution is based; that defendant had placed the money in the bank subject to the credit of the strawberry auction company, and, if that company had used the check giv *500 en it for the purpose, which it should have done, instead of the previous check, the check would have been paid by the bank; that the fact that the strawberry auction company chose to withdraw the proceeds of the car of strawberries from the bank on a check other than the one given in payment thereof did not alter the fact that the company and not defendant received the money derived from the sale of the strawberries, and that the company actually did not part with its property without compensation.

We think the defendant should have been permitted to present the excluded evidence for the consideration of the jury. Subject to the general rules governing the admissibility of evidence, a defendant on trial for obtaining property by false pretenses may offer any evidence which legitimately tends to disprove any of the elements of the crime with which he is charged. 25 C. J. pp. 643, 644, 645.

For the reasons assigned, the conviction and sentence appealed from are annulled, and this case is remanded to the district court for a new trial.

OYERTON, J., dissents, adhering to original opinion.

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